Lennon v. Lennon

114 S.E.2d 571 (1960)

252 N.C. 659

Betty Ann LENNON v. John A. LENNON.

No. 613.

Supreme Court of North Carolina.

June 10, 1960.

*575 Harry R. Stanley, Jordan, Wright, Henson & Nichols, Greensboro, for plaintiff.

Thomas Turner, Greensboro, Joyner & Howison, Raleigh, for defendant.

DENNY, Justice.

It would seem that under the facts and circumstances revealed on this record, the appellant should not prevail unless this Court must give full faith and credit to the custody decree entered by the Nevada court at the time the divorce decree was entered dissolving the marriage between the plaintiff and the defendant on 6 January 1959. The validity of the divorce decree is not challenged in this proceeding. Estin v. Estin, 334 U.S. 541, 68 S. Ct. 1213, 92 L. Ed. 1561, 1 A.L.R.2d 1412; Williams v. State of North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279, 143 A.L.R. 1273.

In May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 843, 97 L. Ed. 1221, the facts were these: Mrs. Anderson (now Mrs. May) was a native of Wisconsin. She married Anderson in that State and lived with him continuously until 1946. They had three children. In December 1946, as a result of growing marital unhappiness, Mrs. Anderson considered getting a divorce, and with the consent and approval of her husband, she took the children to Lisbon, Ohio, "to think over her future course." On New Year's Day 1947 she informed her husband by telephone that she was not coming back to him.

Within a few days thereafter her husband filed suit in Wisconsin, seeking an absolute divorce and custody of the children. The only service of process upon the wife in Ohio consisted of the delivery to her personally, in Ohio, of a copy of the Wisconsin summons and petition. Mrs. Anderson entered no appearance and took no part in the Wisconsin proceeding. Thereafter, a decree divorcing the parties from the bonds of matrimony and a decree purporting to award the custody of the children to their father were entered.

Armed with a copy of the decree and accompanied by a local police officer in Lisbon, Ohio, the husband demanded and obtained the children from Mrs. Anderson. The children remained with their father in Wisconsin from 1947 until 1 July 1951. The father then took the children to visit their mother in Lisbon. When he demanded their return she refused to surrender them.

Relying upon the Wisconsin decree, he promptly filed a petition in the proper forum in Ohio for a writ of habeas corpus. The Ohio court held that it was compelled to give full faith and credit to the Wisconsin decree, and, therefore, the decree was binding on Mrs. May and ordered the children discharged from further restraint by her. On appeal to the Court of Appeals and to the Supreme Court of Ohio, the order of the trial court was affirmed. On appeal, the Supreme Court of the United States said: "* * * (W)e have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody.

"`It is now too well settled to be open to further dispute that the "full faith and credit" clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.' Baker v. Baker, Eceles & Co., 242 U.S. 394, 401, and see 403, 37 S. Ct. 152, 155, 61 L. Ed. 386 [391]; Thompson v. *576 Whitman, 18 Wall. 457, 21 L. Ed. 897; D'Arcy v. Ketchum, 11 How. 165, 13 L. Ed. 648.

"In Estin v. Estin, * * * supra, this Court upheld the validity of a Nevada divorce obtained ex parte by a husband, resident in Nevada, insofar as it dissolved the bonds of matrimony. At the same time, we held Nevada powerless to cut off, in that proceeding, a spouse's right to financial support under the prior decree of another state. In the instant case, we recognize that a mother's right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.

"In the instant case, the Ohio courts gave weight to appellee's contention that the Wisconsin award of custody binds appellant because, at the time it was issued her children had a technical domicile in Wisconsin, although they were neither resident nor present there. We find it unnecessary to determine the children's legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.

"The judgment of the Supreme Court of Ohio, accordingly, is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion."

In view of the fact that the plaintiff herein was not personally served with summons in the State of Nevada and did not appear in said court in person or by attorney, based on the decision of the Supreme Court of the United States in May v. Anderson, supra, we hold that the courts of North Carolina are not bound by the custody decree entered in the Nevada court and that the court below had jurisdiction to determine the custody of the children involved in this controversy.

The facts set out hereinabove are more in detail than necessary to determine the full faith and credit question raised. However, they, together with other facts found and not challenged by defendant, disclose the factual situation essential to a disposition of the case on its merits.

The appellant contends there is no evidence upon which the charge of adultery can be sustained, as set out in finding of fact No. 5. In light of the facts and circumstances revealed on this record, we think it is immaterial whether or not the defendant maintained an illicit and adulterous love affair with Mrs. Gardner while living with his wife. It must be admitted, however, that the letters written by Mrs. Gardner to the defendant, some of which came into the possession of the plaintiff while she was living with the defendant, were indicative of such an amorous, intimate and passionate relationship between Mrs. Gardner and the defendant, which the offended wife, the plaintiff, was not required by law to condone or tolerate.

In our opinion, since North Carolina is the home of the plaintiff and the matrimonial domicile of the parties, and, furthermore, since the defendant surreptitiously removed the children from North Carolina in 1958 to deprive the courts of North Carolina of jurisdiction of said children, the courts of North Carolina did not lose jurisdiction over the children. In re Means, 176 N.C. 307, 97 S.E. 39.

It appears from the record that the court below, with the consent of the parties, interviewed the children privately and each child expressed the desire to remain in North Carolina with the plaintiff. Moreover, the court found that the home of the defendant, presided over by the second wife, the former Mrs. Gardner, would not provide as suitable or happy environment for the children as the home of their mother and her parents. Hence, the court found as a fact that the best interests of the children would be served and promoted by placing them in the custody of the plaintiff in the home of Mr. and Mrs. P. O. Barber.

*577 The court further found that since July 1959 the plaintiff and children have lived in the home of plaintiff's parents, Mr. and Mrs. P. O. Barber, who own a large and comfortable nine-room house on Starmount Drive in one of the best residential areas of Greensboro, North Carolina; that the children have separate bedrooms and there is a separate bath for their use; that Mr. and Mrs. Barber are persons of excellent character and reputation and neither of them uses intoxicants in any form whatsoever; that the plaintiff is likewise a woman of good character and reputation; that Mr. and Mrs. Barber are people of means; that Mrs. Barber has an independent income and Mr. Barber has a good income from his business as a general contractor; that since returning to North Carolina, the children have been regularly taken to church and Sunday School; that since the opening of school on September 2, 1959, they have regularly enrolled in the Sternberger School, a primary school, operated by the Greensboro City Board of Education in the Starmount Forest Subdivision; that the Barber home provides a happy Christian environment and possesses an excellent moral tone; that the children are happy and well adjusted at present in the care and custody of their mother in the home of her parents and do not wish to leave.

This decision does not conflict with our decisions in Allman v. Register, 233 N.C. 531, 64 S.E.2d 861 or Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744, 746, except in the latter case it is stated: "If the petitioner were still a citizen and resident of the State of Florida, the decree in that State awarding the custody of the minor child * * * to her would be binding on our courts under the full faith and credit clause of the Constitution of the United States." The foregoing statement seems to be in conflict with the decision of the Supreme Court of the United States in May v. Anderson, supra. Even so, such statement was not necessary to decision in the Richter case.

The judgment of the court below will be upheld.

Affirmed.